Citation Nr: 0422060
Decision Date: 08/11/04 Archive Date: 08/17/04
DOCKET NO. 04-22 530 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to a separate 10 percent rating for tinnitus in
each ear.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran, who is the appellant in this case, served on
active duty from March 1945 through December 1945.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from an April 2003 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.
In August 2004, a Deputy Vice Chairman of the Board granted
the veteran's motion to have his appeal advanced on the
Board's docket.
FINDING OF FACT
The veteran is in receipt of a ten percent rating for
tinnitus.
CONCLUSION OF LAW
Separate 10 percent ratings for tinnitus in both ears are not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (2002); VAOPGCPREC 2-2003 (May
23, 2003); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
Compliance with the Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified as amended at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002)), was signed into law in November 2000. On
August 29, 2001, VA promulgated final regulations to
implement the provisions of the VCAA. See 66 Fed. Reg.
45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except for
revisions pertaining to claims to reopen based on the
submission of new and material evidence, which in any event
are not applicable in the instant case, the final regulations
are effective November 9, 2000, and "merely implement the
VCAA and do not provide any rights other than those provided
by the VCAA." See 66 Fed. Reg. at 45,629.
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative of which portion, if any,
of the evidence is to be provided by the claimant and which
part, if any, VA will attempt to obtain on behalf of the
claimant.
However, the issue currently before the Board is entitlement
to separate disability ratings for each ear for the veteran's
service-connected tinnitus, and a recent VA General Counsel
opinion has concluded that the notice provisions of
38 U.S.C.A. § 5103(a) do not apply to such claims. See
VAOPGCPREC 2-2004 (VA is not required to provide notice of
the information and evidence necessary to substantiate a
claim for separate disability ratings for each ear for
service-connected tinnitus because there is no information or
evidence that could substantiate the claim, as entitlement to
separate ratings is barred by current Diagnostic Code 6260
and by the previous versions of Diagnostic Code 6260 as
interpreted by a prior precedent opinion of the General
Counsel (see VAOPGCPREC 2-2003)). Accordingly, no further
development to satisfy the VCAA's duty to notify the veteran
is required.
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim.
In the present case, there is no reasonable possibility that
any assistance from VA would aid the veteran in
substantiating his claim because, as will be explained
further below, current law prohibits the assignment of
separate ratings for each ear for tinnitus. Accordingly, the
Board finds that VA is not required to assist the veteran in
the development of this claim. See also, Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (in cases where the law is
dispositive of the claim, the claim should be denied due to a
lack of entitlement under the law).
Entitlement to separate 10 percent ratings for tinnitus in
each ear
In the present case, the veteran is expressing
dissatisfaction with the 10 percent rating assigned after the
grant of service connection for his tinnitus. Disability
evaluations are determined by comparing the manifestations of
a particular disability with the criteria set forth in the
Diagnostic Codes of the Schedule for Rating Disabilities.
38 U.S.C.A. § 1155 (West 2002), 38 C.F.R. Part 4 (2003). The
percentage ratings represent, as far as can practicably be
determined, the average impairment in earning capacity
resulting from service-connected disability. 38 C.F.R. § 4.1
(2003). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2003).
The veteran's tinnitus is currently rated 10 percent
disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260.
At the time he filed his claim in January 2003, Diagnostic
Code 6260 provided a maximum 10 percent rating for recurrent
tinnitus. A note following the diagnostic code stated that a
separate evaluation for tinnitus may be combined with an
evaluation under diagnostic codes 6100, 6200, 6204, or
another diagnostic code, except when tinnitus supports an
evaluation under one of those diagnostic codes. 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (2002).
Subsequently, 38 C.F.R. § 4.87, Diagnostic Code 6260 was
amended, effective June 13, 2003. The new version of
Diagnostic Code 6260 still allows for a maximum 10 percent
rating for recurrent tinnitus. However, the notes following
the diagnostic code now include the following: Only a single
evaluation is to be assigned for recurrent tinnitus, whether
the sound is perceived in one ear, both ears, or in the head;
objective tinnitus (in which the sound is audible to other
people and has a definable cause that may or may not be
pathologic) is not to be evaluated under Diagnostic Code
6260, but rather is to be evaluated as part of any underlying
condition causing it. See 38 C.F.R. § 4.87, Diagnostic Code
6260 (effective from June 13, 2003).
The veteran argues that he is entitled to separate 10 percent
ratings for each ear because his tinnitus is bilateral in
nature. He asserts that 38 C.F.R. § 4.25 requires rating his
tinnitus separately for each ear, as that provision provides,
in pertinent part, that "[e]xcept as otherwise provided in
this schedule, the disabilities arising from a single disease
entity, e.g., arthritis, multiple sclerosis, cerebrovascular
accidents, etc., are to be rated separately[,] as are all
other disabling conditions, if any." See 38 C.F.R.
§ 4.25(b) (2003).
The Board first notes that it has been VA's policy for a
number of years that where tinnitus is to be rated as a
disability in its own right, only one 10 percent rating is
assignable for the tinnitus, whether the sound is perceived
in one ear, both ears, or in the head. See 67 Fed. Reg.
59,033 (2002); 68 Fed. Reg. 25,822, 25,823 (2003). Moreover,
effective June 13, 2003, the notes accompanying 38 C.F.R. §
4.87, Diagnostic Code 6260 now specifically require the
assignment of a single evaluation, even for bilateral
tinnitus. While the veteran contends that 38 C.F.R.
§ 4.25(b) nevertheless authorizes the assignment of separate
compensable evaluations for bilateral tinnitus, VA's
Secretary specifically rejected this argument in codifying
the policy of assigning only a single evaluation for
bilateral tinnitus. See 68 Fed. Reg. 25,822, 25,823 (2003)
("...to rate each ear separately would be a violation of the
principle of 38 C.F.R. § 4.25(b) that a 'single disease
entity' is to be given a single rating").
The Board also points out that on May 22, 2003, VA's Office
of General Counsel issued a precedent opinion holding that
separate ratings for tinnitus for each ear may not be
assigned under Diagnostic Code 6260 or any other diagnostic
code. As discussed in the General Counsel opinion,
subjective tinnitus, which is what the veteran has been
diagnosed with, is defined as the perception of sound in the
absence of an external stimulus which arises from the brain,
not the ears. Therefore, the undifferentiated nature of the
source of the noise, i.e., the brain, is the primary basis
for VA's practice of rating tinnitus as a single disease
entity. See VAOPGCPREC 2-2003. Therefore, for the purpose
of rating tinnitus, the perception of sound in one or both
ears is irrelevant and the assignment of separate ratings
based on each ear is impermissible, even under the old
version of the rating criteria. See VAOPGCPREC 2-2003.
Diagnostic Code 6260, under which the veteran's tinnitus is
currently rated, now specifically provides, consistent with
prior VA policy, that only a single 10 percent evaluation is
assignable for bilateral tinnitus, and in codifying that
policy VA's Secretary has indicated that 38 C.F.R. § 4.25(b)
does not allow for the assignment of separate evaluations for
bilateral tinnitus. More importantly, VA's Office of General
Counsel has specifically held that separate ratings for
tinnitus for each ear may not be assigned under any
diagnostic code. The Board is bound in its decisions by the
precedent opinions of VA's General Counsel. See 38 U.S.C.A.
§ 7105(c) (West 2002).
The Board has also considered whether an evaluation in excess
of 10 percent is warranted for the veteran's tinnitus on an
extraschedular basis under 38 C.F.R. § 3.321(b)(1). However,
the evidence of record does not demonstrate that the
veteran's tinnitus has resulted in a disability picture that
is unusual and exceptional in nature. There is no indication
that the condition ever has required frequent
hospitalization, or that tinnitus alone markedly interferes
with employment so as to render impractical the application
of schedular standards. Accordingly, an extraschedular
evaluation is not warranted. 38 C.F.R. § 3.321(b)(1) (2003).
In conclusion, 10 percent is the maximum rating available for
tinnitus whether it is unilateral or bilateral. The
preponderance of the evidence is against the veteran's
claim; hence, the doctrine of reasonable doubt is not
applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Accordingly, the claim for separate 10 percent ratings for
tinnitus in both ears must be denied.
ORDER
Entitlement to separate 10 percent ratings for tinnitus in
both ears is denied.
____________________________________________
G. H. SHUFELT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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